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Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It Paperback – October 2, 2012
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REPUBLIC, LOST is a powerful reminder that this problem goes deeper than poor legislative tactics or bad character. As progressives contemplate how best to pick up the pieces after recent setbacks, a robust agenda to change how business gets done in the capital needs to be part of the picture. This time, we'd better mean it.―Matthew Yglesias, The American Prospect
"Lessig is one of those rare legal scholars with both a clear narrative voice and a fine eye for historical irony."
―The Washington Post
"A bright and spark-filed polemic... combining legal sophistication with a storyteller's knack."
―Wall Street Journal, on Free Culture
"A powerfully argued and important analysis... it is also surprisingly entertaining."
―The New York Times Book Review, on Free Culture
"Once dubbed a 'philosopher king of Internet law,' he writes with a unique mix of legal expertise, historic facts and cultural curiosity, citing everything from turn-of-the-century Congressional testimony to Wikipedia to contemporary best-sellers like Chris Anderson's The Long Tail. The result is a wealth of interesting examples and theories on how and why digital technology and copyright law can promote professional and amateur art."
―M.J. Stephey, Time Magazine
"More than anything, Lessig understands and often wrestles with a rather understated theory: common sense."
―Derek Bores, PopMatters
"As an initial matter, Lessigian thought is deeply critical in nature... Perhaps it is the luxury of academia, or his nature generally, but Lessig is not afraid to say (loudly) at times: This doesn't work! We need to change. He says it often, and people are listening."
―Russ Taylor, Federal Communications Law Journal
"No one is more skilled at making arcane legal and technological questions terrifyingly relevant to everyday life than Lessig."
―Sonia Katyal, Texas Law Review
About the Author
Lessig serves on the Board of Creative Commons, MapLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and iCommons.org, and on the advisory board of the Sunlight Foundation. He is a Member of the American Academy of Arts and Sciences, and the American Philosophical Association, and has received numerous awards, including the Free Software Foundation's Freedom Award, Fastcase 50 Award and being named one of Scientific American's Top 50 Visionaries.
Lessig holds a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.
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That's been demonstrated since he wrote the book, by the failures of his Mayday PAC in 2014 and his exceptionally brief candidacy for the Democratic nomination for the 2016 presidential race. Arguably, the closest that reforms regarding money in politics have ever come was the 2012 election. John McCain (with a stronger pedigree on campaign finance reform than most) agreed to limit himself to public funding in the general election and urged President Obama to follow his pledge to do the same. And President Obama declined to do so, judging accurately that (1) he could raise more money privately than by accepting the limits of public funding; and (2) that he would not be punished by voters for breaking his pledge. It is ever thus. Tribal loyalty outweighs commitments to campaign finance reform. Winning is everything.
Lessig's answer to the improbability, of course, is that for something so important, we have to try anyway. But that argument does not move most voters to push for procedural reforms, as opposed to substantive policies.
That the book comes across as impractical is not necessarily a reason to not read it. Indeed, most advocates of important reforms face the same type of problem. They have an appealing vision of the future but little practical understanding of how to really achieve it. It reminds one of Robert Caro's biography of LBJ. Many people had visions of creating a better society. But someone who understood politics and how to use political power was essential in passing some of those measures. Whatever else you think about LBJ, it is difficult to visualize someone else achieving what he did, for better or for worse. Certainly not an "ivory tower academic."
Again, that's not necessarily a reason to not read the book. A more important limitation, to me, was the implication that this is the key issue that - once solved - will allow us to solve all our other problems. I wasn't persuaded. Lessig implies that once we align our representatives with the interests of the "People alone," the remaining problems to be solved are ones of substantive policy. But there are still procedural impediments, which may be as important as campaign finance reform.
Three that come to mind are intensity of desire and the limitations of representative democracy, neither of which Lessig pays much attention to. The Madisonian ideal of one faction checking another faction works poorly with many issues because of a mis-match of intensity of desire. If, for example, you want to impose much stronger gun control laws, there's probably a majority of "the People" who would be in favor. But for most of them, it's likely not even in their list of top ten reasons to vote for a particular candidate. While for many who oppose such stronger gun control laws, it *is* one of the most important factors in voting for a particular candidate. The same can be said about a host of other issues (including campaign finance reform); the proponents of the status quo outweigh the proponents of change not by their numbers but by the intensity of their desire. And that applies not only to the willingness to donate funds but also to the willingness to vote for a candidate. Politicians really like campaign cash, but if you eliminate those concerns, they still really need votes.
Representative democracy doesn't work very well any more. Partly it's because for many problems, it's hard to come up with solutions that will really work - which is part of why Congress tends to kick the can down the road or announce (with fanfares) a simple "solution" that is "neat, plausible and wrong@ (Mencken). But the bigger problem is that there are too few politicians willing to pursue an unpopular course that is right. And there are plenty of solutions that the People will favor that will make things worse. Lessig mentions that the issue that came closest to resulting in a constitutional convention was the balanced budget amendment, which most policy wonks consider exceptionally dangerous. (Not trying to pick on Republicans - there are a lot of very popular solutions on the left that would be destructive as well.) If you eliminate the distortion of campaign funds, you're still left with the distortions (of good policy) inherent in aligning politicians with the desires (as opposed to the best interests) of the People. I would guess that I'm more pessimistic or cynical than Lessig in this respect.
In summary, it's a well-written book and advocacy. But the diagnosis is preaching to the choir. And the solutions are "pie in the sky" fanciful. I wish that weren't the case.
What single issue has any chance of uniting most of the ideological spectrum of American voters? ⎯ Our corrupt Congress. Our votes do not matter. But note the comma in the title of this book. We are not gone, just lost. We do not get the government we deserve, contrary to what Rep. Barney Frank (D- Mass.; 1981- ) implied when he blamed the voters for putting people in office who are obstructionists or somehow are the cause of the strident polarized condition of Congress today. Instead, Lessig argues convincingly that no one is to blame - it's the system. Finally! Someone understands the sociology.
But is this structural cause of a corrupt Congress serious enough to warrant a constitutional convention? What are the chances of it succeeding? Lessig says yes because "corruption is the gateway problem" (p. 175) and he estimates that there is about a 10 percent chance of success for a constitutional solution. He carefully walks us through the complex and elusive cause of our corrupt Congress (and its effects: why we don't have free and efficient markets, successful schools, more entrepreneurs, a safe financial system, etc.). He does so with clear, interdisciplinary, well organized, and thoroughly researched logic. The book tells the story of our government losing its way. However, it also offers hope, albeit small, that we can restore our democracy the old fashioned way ⎯ with grass-roots action of "peaceful" political terrorizing and subversion leading to a constitutional convention. Yes indeed, he debunks the common reasoning against constitutional amendments to solve the problem. Accordingly, his stated purpose is to launch Rootstrikers , which is an online organization devoted to gradually getting ordinary citizens to strike at the root of the problem that, no one caused.
Lessig's background is well suited for this monumental task of bringing together an ideologically neutral use of political science, sociology, constitutional law, history, economics, and even one citation from evolutionary biology and one from Christian scripture. He has an early history of Republican activism but he now calls himself a liberal and a personal friend of Obama. As a lawyer from Yale, he clerked for supreme court Justice Scalia and did the leg-work on the Microsoft monopoly case for conservative Judge Posner. He has a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and is considered an expert in cyber copyright law issues because of his work while teaching at Stanford. He credits his Stanford experience with the legislative process involved in cyber policy for his inspiration to shift his research to the corruption of Congress. He currently teaches law at Harvard and directs Harvard’s Center for Ethics, where he was able to assemble "an army" of researchers to help him publish this remarkably well documented book.
The book is not just an expose' about money in politics. Its strength is in the specifics about just what behaviors make the money flow and for its recommendations for public action. Of course the amount of money in our politics and the testimonials about how it is acquired are shocking even to me, a politically aware sociologist specializing in business ethics, organization theory, and organizational behavior. Seven billion in lobby money spent in just the first two years of the Obama Presidency, 6 billion in the two years before that, and for the policy consequences, he quotes the conservative CATO institute's figure of $90 billion spent in 2009 for what they call "corporate welfare" (p. 269). Much more important however is the active solicitation for that money by our politicians and the methods they use! They spent/spend 30 to 70 percent of their time on it; not much left for the public's business, according to Lessig's research. The money goes primarily to campaigns of course. ⎯ But elections, and even final votes on bills are not the places where lobby money does the damage! Instead, it happens much more seriously and insidiously with politicians stealthily changing the substance of bills and changing their own agenda. And, our candidates for office are not chosen by their parties for their competency to govern but for their fund-raising ability. All of this done in order to cater to lobby money, i.e. Congress is a "gift economy of influence", as Lessig calls it.
He organizes this story of what he calls "dependence corruption" by analogously using Boris Yeltsin's alcohol dependency and how alcohol had so much power over him that it destroyed any good that the former Russian President did (or may have been able to do). Power, as we say in organizational behavior, has at its base, dependency. In this case according to Lessig, the Congress's dependence upon lobbyists instead of "the people alone" has destroyed what our founders intended and there is no one to blame. Yes, liberals critical of Obama will get plenty of ammunition in Chapter 11, "How So Damn Much Money Defeats the Left". Likewise conservatives will see in Chapter 12, "How So Damn Much Money Defeats the Right", that Republican legislators of all ideological stripes have ignored their voter's wish for smaller government, simple taxes, and efficient markets. But both the politician and the lobbyist are victims (and perpetrators) of "dependence corruption" and it is not the fault of anyone ⎯ the fault lies with our constitution.
Lessig is also careful to point out, with superb logic and science, that even if the absurdity of only the appearance or perception of corruption were the reality, that appearance and perception cannot be changed! Perception, whether accurate or not, is the reality because of our funding structure. It therefore does enormous damage to our democracy.
"The belief that money is buying results produces the result that fewer and fewer of us engage. Why would one rationally waste one's time?" (p. 169).
"Americans are ignorant . . . Less than a third of us know that House members serve for two years, or that Senators serve for six.24 Six years after Newt Gingrich became the Speaker, only 55 percent of us knew the Republicans were the majority party in the house, a rate just slightly better than the result if monkeys had chosen randomly.26
So, ignorant we are. But we are not stupid. . . . remaining ignorant about politics and our government is a perfectly rational response to the government we have." (pp. 301 & 302, bold emphasis mine).
This fearless embrace (and respectful debunking) of the most conservative and skeptical interpretation of current reality, the science, and the constitution itself is seen throughout the book. It makes his case even more convincing. For another example, he is of course horrified at the Citizen's United decision and rightfully condemns Justice Kennedy's liberties beyond the law, but he also understands why the court ruled that way:
". . . upon what authority did the justice make this claim? On what factual basis did the Court rest this factual judgment?
The answer is none. The Court had no evidence for its assertion. It didn't even purport to cite any."(244)
"The Court reached its conclusion not because it held (in this case at least) that corporations were 'persons' . . . The First Amendment says that Congress 'shall make no law . . . abridging the freedom of speech.' It doesn't say '. . . The freedom of speech of persons.' " (p. 239)
So we have an expensive "dance". He shows us how lobbyists do not really try to "flip" (i.e., change) any given legislator's position. Instead, the legislators themselves, knowing where the money is, gradually and sometimes imperceptibly, "shape-shift" their positions (often unconsciously) to better their solicitation appeal. Consequently, this behavior appears to the naive political scientist and some in the public that the lobby money has no influence. They say that lobbyists are effectively representing nothing more than the varying and competing views of the American public and therefore our vote really does matter. Of course Lessig shows us the truth. The American public is indeed left out of the dance. Moreover, the key to understanding this dance between legislator and lobbyist is not just shape-shifting. It is also how legislator and lobbyist craft bills long before they come to a final vote and how the agenda of the individual legislator is a product of an effort to please the lobbyist. These two distortions, "substantive distortion" and "agenda distortion" are often beyond the reach of the political science survey methodology. Lessig understands that too often political science correlations are incorrectly used as causation, regression analysis is misused, and the wrong variables are measured. Throughout the book he cites a mountain of survey research, qualitative field work verifying or invalidating the surveys, testimonials from both Republican and Democratic legislators now out of office, and many very sad, albeit colorful at times, anecdotes. Effectively, he does an interdisciplinary meta-analysis of the research using plain understandable language.
Dependence corruption of Congress produces shape-shifting, substantive distortion, agenda distortion, and an enormous amount of time devoted to soliciting ⎯ all resulting in an almost total disregard for voter wishes (short of the few major issues most in the limelight). Simultaneously and consequentially, these have even resulted in the near destruction of market capitalism itself, e.g., competitive advantage given to large banks, agriculture, and energy. Add to the list of corrupt practices the fact that both Republicans and Democrats are so heavily dependent on lobby money that they use just the threat of regulation (and the promise to remove it) as their most valuable tool to "extort" even more money from lobbyists! Here is a summary of this condition, first with the Clinton Gore years, then the Reagan administration (the crew that was elected to shrink government), and finally Newt Gingrich:
" . . . Al Gore [wanted] to deregulate the internet [by putting] both kinds of Internet access under the same regulatory title, Title VII, . . . Not no regulation, but much less . . . Gore's team took the idea to Capitol Hill. One aid to Gore summarized to me the reaction they got. 'Hell no! If we deregulate these guys, how are we going to raise any money from them?' . . .
Reagan often spoke as if it were the bureaucrats who were pushing to increase the size of government. These bureaucrats, like roaches, would push and push and push until they regulated absolutely everything they could.
What Reagan didn't think about is how members of Congress ⎯ even Reagan Republicans ⎯ might themselves become the roaches. How they both, Republicans and Democrats alike, have an interest in extending the reach of regulation, because increasing the range of interests regulated increases the number who have an interest in trying to influence federal regulation. And how is that influence exercised? Through the gift economy enabled by Santa, the lobbyist." . . .
. . .of course no one would say that Congress regulates simply for the purpose of creating fund-raising targets . . . But souls on the Right ⎯ especially those enamored of incentive theories of human behavior ⎯ should recognize that it is more likely Congress's thinking about targets of fund-raising that affects the scope of government power rather than bureaucrats . . ." (pp. 196 - 198)
". . . in the minds of business leaders. . . . 'fear . . . drives most business leaders to contribute to campaigns. It's also why most say donors get more than their money's worth back for their political investments.'11 . . ."Even the reformers reportedly practice this extortion. . . . one 'PAC officer reported that though John Kerry (D- Mass.; 1985- ) makes a public issue of not accepting PAC contributions, his staff had nonetheless called the corporation to say that Kerry expected $5,000 in personal contributions from the company's executives.'15
'. . . [it's a] protection-money racket . . . 16 [when] 'Donors coerce politicians," . . . "and politicians coerce donors.'17 . . . Newt Gingrich 'believed that the more committees and subcommittees a person can be on, the more attractions they can acquire to present to contributors'18 . . . 'lawmakers freely acknowledged that they and their colleagues often sought assignments to certain 'cash cow' committees because members of those committees are able to raise large amounts of campaign money with little effort.'19 Here is the purest example of regulating to raise money, . . . " (p. 199)
The results of this dependence corruption are the familiar stories (in Part II of the book and beyond) of how public policy does little of what the majority of voters want: too little or too much taxation, too little or too much regulation, no single payer option in health care bill deliberations, subsidy to industry be it agriculture, banking, or energy, at the expense of the public, and a disregard for our constitution. These are issues near and dear to both Republicans and Democrats as the following quotes remind us:
"In the spring of 2011 the United states faced many public policy problems. We were in the middle of two wars. The economy was still in the tank: thirteen million Americans were unemployed, almost 15 percent were on food stamps, and 20 percent of kids were living in poverty. There was an ongoing battle about health care, and the public debt. There was a continuing fight over taxes. Likewise over immigration policy. Many wanted tort reform. Legislation to address global warming had still not been passed. Nor had an appropriations bill, or a budget. And a fight between Tea Party Republicans and the rest of Congress was bringing America to the brink of a government shutdown.
So within that mix, what issue would you say was 'the most consuming issue in Washington ⎯ according to members of Congress, Hill staffers, lobbyists and Treasury officials ⎯ '129. . .?"
A bill to limit the amount banks could charge for the use of debit cards: so-called "swipe fees.'
This bill . . . . was the leading issue for lobbyists. . . .
"a full 118 ex-government officials and aides [were] registered to lobby on behalf of banks . . . [A]t least 124 revolving-door lobbyists" were lobbying on behalf of retailers. The issue dominated Congress's calendar." (p. 164)
Again, the point that he is making here is that no sooner do candidates get elected than their agenda shifts to things that cater to lobbyist at the expense of the agenda of the voters. But not all lobbyists are the same. He points out that it is the corporate lobby that does not represent voters - corporate lobbyists are not in it to deliver votes. Instead, they are in it to invest money in legislators on an ongoing basis throughout their terms. Lessig even provides return-on-investment figures for this corporate business activity.
Congress knows that they are addicted to their "protection racket" and they know that they can do nothing about it, if they want to keep their jobs anyway. So it's a vicious "dance". Politicians are in a chronic fight to secure lobby money and the business interests are in a chronic fight to secure political favor. Most importantly, it is NOT the fault of the politicians, it is NOT the fault of the lobbyists, and it NOT the fault of the voters. Lessig correctly suggests that demonizing any of these gets us nowhere. He also points out that this dance is very different than lobbyists who are at least devoted to the agenda of real voters such as Unions and The Tea Party, although their money should not be welcome either. Real voters or not, Lessig calls for publically financed elections and other constitutional fixes. The final part of his book is devoted to just how to do it.
He explains why just the legislative fixes of transparency and anonymity of donors in campaign finance won't work and then presents potential solutions and four strategies for action. He shows why he thinks the constitutional fix is the best of the four and puts to rest the related legal, practical, and political objections to a constitutional convention. For example:
"But even though no convention has been called, the calls for a convention have had an important reformatory effect, most famously in the context of the Seventeenth Amendment (making the Senate elected), when the states came within one vote of calling for a convention, the Congress quickly proposed the amendment the convention would have proposed.8
. . . a constitutional convention is the one final plausible strategy for forcing fundamental reform onto our Congress.9 It is also the most viable grass-roots strategy for forcing reform onto the system. It's going to be easier to organize movements within the states to demand fundamental reform than it will be to organize Congress to vote for any particular amendment. . ." (pp. 292 & 293)
Or anything else that threatens those in the gift economy, as Lessig has carefully shown us.
He has a discussion about the role of "Rich People" and an appendix titled "What You Can Do, Now". There are stories of very wealthy people such as Arnold Hiatt, the former chairman of Stride Rite Shoes, one of the biggest donors to the Democratic Party, and one who understands that his money-power is destructive, (and because of his awareness was publically "humiliated" by Bill Clinton). Lessig explains that enlightened rich people like Hiatt:
" . . . recognize that in a democracy their power is wrong. Not their wealth. . . .
. . . the idea that in a democracy you should be able to trade your wealth into more influence over what the government does is just wrong. It denies the basic principle of 'one person, one vote.' .
. . . The egalitarianism that democracy demands is not that there be no influential people. It is that influence be tied to something relevant to the democracy. " (pp. 312 & 313).
He proposes solutions and gives us four things that we can do right now (in part with the aid of his online organization Rootstrikers ) to engage in "politics without politicians". But more importantly, he explains why this effort can be, (is, and must be) across the ideological spectrum. His hope is that responsible people (non politicians) will join Rootstrikers and start small, with peaceful insurgent terrorizing of politicians (to paraphrase) and by organizing "mock" constitutional conventions as pilots. These pilots are "deliberative polls" to discover just what citizens want out of constitutional changes.
My personal addition is that both liberal and conservative Obama critics will read this book and unite. ⎯ Then join in, when they realize that they have had the wrong target, i.e., this book teaches us that politicians, lobbyists, and corporate sponsors cannot "just say no". The problem is structural not personal, as Rep. Frank would like us to believe. As Lessig (pp. 147, 148, 186, 188, & 189) and others remind us, one need only look at the impotence of the so-called Dodd-Frank banking "reform" legislation to get that structural message!
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